Scalia's empty chair and the Senate's path forward

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The late Supreme Court Justice Antonin Scalia established himself and will long be remembered as a towering hero of the conservative movement. The coming months will likely bring more political wrangling and high-minded rhetoric over the nomination of his successor.

Two key questions stand out. First, can the nomination and confirmation occur before the November presidential and congressional elections? Second, what type of nominee would clear the constitutional hurdle of Senate confirmation?

Scalia leaves an impressive legacy as a tireless and unceasing champion of democracy and the constitutional text. On a personal level, of course, he also leaves an impressive family legacy: his wife Maureen and their nine children and over 30 grandchildren.

To be sure, his relentlessly logical approach and doctrinal consistency dramatically influenced the court, even his liberal colleagues, to look to the text and the plain meaning of provisions under review. His textualist approach steered the court away from judicially crafted multi-part tests that seemed more like statutes than judicial decisions. He imposed more analytical rigor in his approach to legal precedents and outcomes. He all but ended the judicial game of justifying outcomes by sleuthing for obscure snippets of language buried somewhere in the many hundreds of pages of "legislative history." Congress, he said, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes."

As court watchers have recognized, Scalia was also one of the best writers in the history of the Supreme Court.

On the issue of his successor, history may prove instructive. The most recent occasions when a president nominated and the Senate confirmed a Supreme Court selection in a presidential election year were 1956, 1940 and 1932. In two of these cases, a Republican president named Democrats to the high court: President Eisenhower selected William Brennan and President Hoover selected Benjamin Cardozo.

President Obama could follow this precedent and name a Republican to fill Scalia's seat. Rumor had it that Obama was considering Brian Sandoval, the Republican governor of Nevada. That type of nominee would put the pressure back on Senate Republicans to explain to American voters in their home states why a Republican nominee would be unacceptable. But wary conservatives have been burned too many times by the likes of Justices David Souter and Anthony Kennedy, or even Chief Justice John Roberts.

A Republican nominee would present a special challenge for those Republican senators up for reelection in moderate states, such as Sens. Ron JohnsonRon JohnsonGOP plan: Link Dems to an email scandal GOP senator: Dems making ‘concerted effort to produce fraudulent votes’ Club for Growth: Anti-Trump spending proved to be 'good call' MORE (R-Wis.), Rob PortmanRob PortmanVulnerable House freshmen passed most bills in decades, analysis finds Republican opposition to raising the minimum wage Is crumbling Trump: 'Very disappointed' GOP senator dropped support MORE (Ohio), Mark KirkMark KirkGreat Lakes senators seek boost for maritime system GOP senators avoid Trump questions on rigged election Iran sending ships to Yemeni coast after US ship fires at Houthi sites MORE (Ill.), Kelly AyotteKelly AyotteThe Trail 2016: Who is really winning? Graham: GOP Senate could rein in Clinton White House Warren: Trump is right about Sen. Kelly Ayotte being weak MORE (N.H.) and Pat Toomey (Pa.).

The confirmation process changed dramatically over the last few decades, as critics of the Warren Court focused attention on the Supreme Court's failure to act as an umpire calling balls and strikes as it became a super-legislature of unaccountable life-tenured judges who substitute their own policy preferences for duly enacted laws — in the words of the late Professor Herbert Wechsler, a "naked power organ."

Ultimately, we see this frustration on both sides of the political aisle in the presidential nomination contest. We see a great divide between voters' wishes and Washington's failure to deliver the relief they seek. That divide is one reason for the rise of Donald TrumpDonald TrumpWould Obama leave country if Trump wins? WH spokesman won't say. Senate Judiciary chairman calls for 'robust review' of AT&T-Time Warner deal Mosul campaign Trump called 'total disaster' making gains, officials say MORE (R) and Sen. Bernie SandersBernie SandersThe Trail 2016: Who is really winning? The evidence backs Trump: We have a duty to doubt election results A Good Year to Go Green (Party) MORE (Vt.).

This presents Senate Majority Leader Mitch McConnellMitch McConnellPelosi urges end to Pentagon's clawback of soldier overpayments Coffman’s stance on climate change disingenuous, irresponsible Bill Murray honored with Mark Twain Prize MORE (R-Ky.) and Senate Judiciary Chairman Chuck GrassleyChuck GrassleySenate Judiciary chairman calls for 'robust review' of AT&T-Time Warner deal Report: Investor visa program mainly funds wealthy areas Cotton not ruling out 2020 White House bid MORE (R-Iowa) the perfect opportunity to redeem Washington Republicans with frustrated voters of all persuasions.

The people gave Republicans a majority in the House of Representatives in 2010. They voted House Majority Leader Eric CantorEric CantorVA Dems jockey for Kaine's seat High anxiety for GOP Webb: Broken trust, broken party MORE (R-Va.) out of office in a Republican primary. They gave Republicans a Senate majority in 2014. They essentially forced Speaker House John BoehnerJohn BoehnerDems brace for immigration battle 56 memorable moments from a wild presidential race Trump may pose problem for Ryan in Speaker vote MORE (R-Ohio) to resign last fall.

Voters sent Republicans to Washington to use their rare and historic control of both Houses of Congress to stop President Obama. It is high time now, in the fourth quarter of Obama's presidency, to use this empowerment on the most important issue of our time. McConnell and Grassley deserve credit for recognizing the importance of this moment and the charge they have from voters.

President Obama could choose to follow the examples of Presidents Eisenhower and Hoover by crossing party lines. He could nominate a solid defender of the rule of law and the Constitution, such as Sen. Mike LeeMike LeeDonald Trump's Mormon PR problem Trump's big worry isn't rigged elections, it's GOP establishment GOP senators avoid Trump questions on rigged election MORE (R-Utah). If so, the Senate would have an easy time confirming Obama's selection. If not, the country will be better off leaving Justice Scalia's chair empty until a worthy successor can be found.

Trotter is a political analyst and attorney. Her views are her own.